Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

11 May 2014

For Mother's Day

Everybody's favorite unwed mother... since that Alaskan chick has dropped from public view, anyway. And if that seems an overtly political swipe at several convenient targets, that's because it is.

Joanne Harris trashes ignorant fen and academics, while perhaps over-politely failing to be equally dismissive of ignorance in the publishing industry and among reviewers (who frequently make the same — and often worse — errors).

Meanwhile, the the UK continues to move closer to a rational copyright statute with commitment (however delayed) to obtaining approval of certain "exceptions" (in US practice, these would be called "defenses") to accusations of copyright infringement. Still no fair use... but they don't have a First Amendment, either, so fair use is a much longer path.

My colleagues make too much money. This piece has three implications that it never reaches: Linguistic dominance (Anglo-American dominance is possible if, and only if, business is conducted in English); rejection of the most abusive colonial masters (which is not to say that the US and UK were paragons of virtue... only that the other European colonial powers were worse); and the dubious advantage of "secrecy" purportedly offered by arbitration.

We can learn a little about disease control from shrimp-farming. Note, though, that this isn't about individual biochemical prophylaxis (such as vaccination); it's about environment control. Anyone who has pondered the rise of MRSA in hospitals will not be surprised.

I'm pretty desperate for a silver lining from the indefensible Oracle/Google "copyright" ruling(PDF), which manages to be wrong on so many levels that I barely know where to start. That rather tarnished silvery lining (which will probably turn out to be a horrifying mixture of aluminum paint on Mylar with a Supreme Court this technologically unsophisticated) is the clear conflict with other law.

Basically, what the Federal Circuit did was ignore binding Supreme Court precedent in Feist, which requires a certain (if low) amount of original expression for something to be copyrightable in the first place. The Java API does not qualify as original expression under Feist, or indeed under any rational interpretation of "original expression." (Sorry, Professor Risch, but invoking the hypothetical exception stated in Feist's dicta doesn't work here, because that's not what was at issue in either case, even under a "reframing" paradigm.) We don't even need to get to the fact/expression dichotomy enshrined in Feist for that! I remain committed to the idea that patents should not be treated differently for litigation from copyrights: Either everything goes to so-called "regional circuits", which leads to one kind of chaos... or everything goes to a single, "federal" circuit, leading to a different kind of chaos. In a way — like I said, I'm really trying to find that silver lining — this decision demonstrates that the fallback of that position (it's clear when the court has screwed up, and there's a clear pathway to further review) has some merit. Lots of headaches in the meantime, but some merit.

The key point that authors should take away from the Oracle/Google fiasco is that, as Justice Holmes said well over a century ago in Bleistein, we can't trust judges to make accurate — or even defensible — decisions regarding what is and is not artistic or original. The secondary point is that when arrogant investors (and MBAs trying to act pro-investor for their personal benefit) start trying to find any possible way to suppress competition, misuse of intellectual property law is very, very close to the top of their list of preferred tools. Both Google and Oracle should be ashamed... but those whose motivations are driven by capital markets and personal ego seldom have shame, do they?

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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